Ibrahim v Herring [No 2]

[2011] WASCA 236

IBRAHIM -v- HERRING [No 2] [2011] WASCA 236

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 236
Court:	THE COURT OF APPEAL (WA)	Published:	26/10/2011
Case No:	CACR:133/2010	Heard:	21 OCTOBER 2011
Coram:	NEWNES JA	Delivered:	21/10/11
No of pages:	7	Judgment Part:	1 of 1
Result:	Application for review dismissed
Category:	B
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Parties:	MOHAMED TAREK IBRAHIM RAL STEPHEN HERRING
Catchwords:	Practice and procedure Registrar refused to accept for filing appellant's application for review of decision of single judge Application included matters that were not decision of single judge Appellant sought review of registrar's decision Application for review of registrar's decision dismissed Appellant's application for review of decision of single judge did not comply with rules Limited nature of allowances that can be made for litigant in person
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 8, r 10(1), r 15, r 16, r 43 Supreme Court Act 1935 (WA), s 61(1), s 61(3)
Case References:	Ibrahim v Herring [2011] WASC 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IBRAHIM -v- HERRING [No 2] [2011] WASCA 236 CORAM : NEWNES JA HEARD : 21 OCTOBER 2011 DELIVERED : 21 OCTOBER 2011 PUBLISHED : 26 OCTOBER 2011 FILE NO/S : CACR 133 of 2010 BETWEEN : MOHAMED TAREK IBRAHIM

Appellant

AND

RAL STEPHEN HERRING
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : HALL J

Citation : IBRAHIM -v- HERRING [2010] WASC 190

File No : SJA 1091 of 2009

Catchwords:

Practice and procedure - Registrar refused to accept for filing appellant's application for review of decision of single judge - Application included matters that were not decision of single judge - Appellant sought review of registrar's decision - Application for review of registrar's decision dismissed - Appellant's application for review of decision of single judge did not comply with rules - Limited nature of allowances that can be made for litigant in person

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Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 8, r 10(1), r 15, r 16, r 43

Supreme Court Act 1935 (WA), s 61(1), s 61(3)

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Ibrahim v Herring [2011] WASC 190


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1 NEWNES JA: The appellant has applied for the review of the decision of a registrar of this court who refused to accept for filing the appellant's application for review of the decision of a single judge. The appellant appeared in person on this application, as he has throughout the antecedent proceedings.

2 On 21 October 2011, I dismissed the application for review of the registrar's decision. I said I would publish reasons for my decision. These are the reasons.

Background

3 On 6 August 2009 the appellant was convicted in the Magistrates Court of two offences under the Road Traffic Code 2000 (WA). Those offences were failing to give way: s 126(2), and failing to obey a traffic lane arrow: s 73. The convictions followed a hearing that occurred over two days, 16 and 30 July 2009.

4 The appellant sought leave to appeal against the convictions, alleging that the magistrate failed to give consideration to some of the evidence and erred in his assessment of the principal prosecution witness. He further claimed that he was interrupted in his cross-examination of that witness by the magistrate and was thus denied a fair opportunity to present his case.

5 On 28 July 2010, Hall J refused leave to appeal, finding that none of the appellant's grounds of appeal had any prospect of success: Ibrahim v Herring [2010] WASC 190.

6 On 26 August 2010, the appellant filed an appeal notice seeking leave to appeal against the decision of Hall J. As the appellant was out of time in filing the appeal notice he required, and sought, an extension of time to commence the appeal.

7 The appellant was advised, by notice dated 23 June 2011, that the applications for leave to appeal and an extension of time to commence the appeal (together 'the appeal applications') would be heard by the Court of Appeal on 20 September 2011.

8 On 13 September 2011, the appellant filed an application to have Mazza J disqualify himself from hearing the appeal applications and for orders, among other things, that an interstate judge be appointed to hear those applications.

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9 At the outset of the hearing on 20 September 2011, the application that Mazza J disqualify himself was heard by his Honour and dismissed, with reasons to be published later. The appeal applications were then heard by a Court of Appeal consisting of McLure P, Buss JA and Mazza J. The court has reserved its decision.

10 On 21 September 2011, the appellant sought to lodge in the Court of Appeal registry an application for review (the 21 September application) of what were said to be four decisions of Mazza J. The application describes the decisions to be reviewed as follows:

1 Unknown order for listing the leave to appeal directly before three judges instead of a single judge.

2 Refusing to conduct the hearing on the 20/9/11 in front of a single judge only and denying the applicant the right for review and natural justice in accordance with the court rules.

3 Refusal of a single judge to disqualify himself.

4 Refusal of the judge to appoint an interstate judge.

11 The appellant specifies the date of the decisions as:

Not known (found out about it on the 20/9/11) and 20/9/11.

12 The registrar refused to accept the 21 September application for filing. The appellant was informed by a letter from the court dated 22 September 2011 that the only decision made by Mazza J on 20 September 2011 was the refusal to disqualify himself and only that decision was amenable to review under s 61(3) of the Supreme Court Act 1935 (WA).

The application

13 The appellant responded by filing, on 27 September 2011, an application to review the refusal of the registrar 'to list' the 21 September application. It is apparent that the appellant means the refusal to accept the 21 September application for filing. The grounds of review are that:

1. Apparently [the registrar] does not understand what is going on in the case and how the matter transpired or does and acting corruptly [sic].

2. [The registrar] is corrupt and acting corruptly.

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14 The orders sought by the appellant are as follows:

1. Interstate judge be appointed to hear this review.

2. [The registrar] be disqualified of [sic] dealing with the case and referred to the police for investigation for corruption under s 121 of the CCA.

Disposition of the application

15 At the outset of the hearing the appellant pressed for an order that this application be heard by a judge appointed from another State. He did so, as I understood it, on the basis that he had no confidence he would obtain justice from a current judge of this court in light of the many adverse outcomes he had experienced in this court. The order sought was without any merit and I refused it.

16 In dealing with the substantive application, it is necessary to start with the relevant statutory framework. Rule 10(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that the Court of Appeal registrar may refuse to accept a document for filing if the document does not comply with the rules. Rule 15 provides that a party dissatisfied with a decision of the registrar may apply to a single judge to set aside or vary the decision. In dealing with such an application the single judge must consider the matter afresh: r 16.

17 As I have mentioned, the document which the registrar refused to accept for filing was an application for review of the decision of a single judge. The jurisdiction and powers of a single judge of appeal are dealt with in s 61 of the Supreme Court Act. Section 61(1) provides that in relation to an appeal or application before the Court of Appeal, a single judge of appeal may exercise any jurisdiction or powers of the Court of Appeal that are conferred on a single judge of appeal by rules of court. Section 61(3) provides that a person dissatisfied with a decision or order of a single judge may apply to the Court of Appeal to set aside or vary the decision or order.

18 The jurisdiction of a single judge is dealt with in r 43 and r 53 of the Court of Appeal Rules. That jurisdiction includes extending the time within which an appeal can be commenced (r 43(2)(a)), giving leave to appeal (r 43(2)(b)), and making any order that is necessary or convenient as a result of an order made under one of the other heads of jurisdiction of a single judge (r 43(2)(l)).

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19 A party who wants to apply to the Court of Appeal to set aside or vary the decision of a single judge of appeal must file a Form 13 within five working days of the decision: r 8. That form requires the applicant to state the decision-maker and the date of the decision, and to provide a brief description of the decision. The applicant must also state the grounds of the application for review.

20 I have set out above the grounds relied upon by the appellant. It hardly needs to be said that the allegation that the registrar acted corruptly in refusing to accept the document for filing is an extremely serious matter. It ought to be obvious that an allegation of that nature should not be made unless there is a proper basis for it. In this instance the appellant produced not a scintilla of evidence to support the allegation and there is nothing to suggest the remotest possibility that such evidence might exist. The allegation seems to have been motivated by a belief (inexplicable and erroneous as it is) on the appellant's part that only corruption could explain the rejection of his application. Be that as it may, it needs to be clearly understood that an allegation of that nature is not to be made unless there is a sufficient factual foundation to warrant it being made. There was no basis for the allegation in this case and it is necessary to register the court's disapprobation of the appellant's conduct in making it.

21 It was further submitted by the appellant that the application should have been accepted for filing even if it contained matters which were not decisions of Mazza J, as the court could simply reject those other matters.

22 It is evident that the appellant's application went beyond matters that were reviewable under s 61(3) of the Supreme Court Act. The appellant has not identified an order of Mazza J listing the appeal applications before three judges instead of one, and no such order exists. Nor is there an order of Mazza J refusing to permit the appeal applications to be heard before a single judge. It appears from the transcript of the subsequent hearing of the appeal applications by the Court of Appeal that the appellant complained at the outset that the appeal applications had been listed before a court constituted by three judges instead of being heard by a single judge. The appellant considered that he was thereby deprived of the right of review he would have if the applications were heard by a single judge. His contention that the appeal applications should be heard by a single judge was rejected by the Court of Appeal and the hearing proceeded.

23 There is also no order of Mazza J refusing to appoint an interstate judge to hear the appeal applications. The only matter argued before

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Mazza J was the appellant's application that his Honour disqualify himself from hearing the appeal applications.

24 It follows that only one of the four matters contained in the 21 September application was a decision of Mazza J sitting as a single judge.

25 In my respectful opinion, the registrar correctly refused to accept the document for filing. The application did not comply with the rules. The review process sought to be invoked is limited to decisions of a single judge. Three of the four matters in the 21 September application were plainly not such decisions. The rejection of the application on that basis is not a matter of mere pedantry. Such extraneous matters are irrelevant to the review process. The inclusion of extraneous and irrelevant material in review applications wastes time and creates uncertainty. If applications are cluttered up with such material the work of the court will be significantly impeded, to the detriment of other litigants with matters to be heard and at the expense of the finite public resources available to the court.

26 In saying that I am conscious that the appellant is acting in person and that some allowance must be made for that. But the allowances that can be made for litigants in person are limited. A substantial degree of compliance with the rules is necessary to enable the work of the court to be disposed of in a timely and efficient way and to ensure that other parties are not disadvantaged or put to unnecessary inconvenience or expense. The 21 September application fell below that standard.

27 It was, of course, open to the appellant to file an amended application once the problem was pointed out to him in the letter of 22 September 2011, but he chose not to do so.

Conclusion

28 It was for those reasons that I dismissed the application for review of the registrar's decision.